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State v. Crary

The Court of Appeals of Washington, Division Three
Aug 21, 2007
140 Wn. App. 1016 (Wash. Ct. App. 2007)

Opinion

No. 25186-1-III.

August 21, 2007.

Appeal from a judgment of the Superior Court for Benton County, No. 05-1-01647-1, Craig J. Matheson, J., entered May 5, 2006.


Affirmed in part, reversed in part, and remanded by unpublished opinion per Kulik, J., concurred in by Brown and Stephens, JJ.


Kenneth Crary challenges his conviction for unlawful possession of a controlled substance and his exceptional sentence. Mr. Crary asserts that the trial court erred by admitting evidence from the search incident to his arrest. He also argues that the imposition of an exceptional sentence was improper because it was based on the trial court's finding that a standard range sentence was clearly too lenient in light of Mr. Crary's unscored misdemeanor history. Because Mr. Crary's arrest was valid, the trial court properly admitted the evidence from the resulting search. Consequently, we affirm the conviction. However, we vacate the exceptional sentence because Mr. Crary did not specifically waive the right to jury fact-finding at sentencing and remand for resentencing.

FACTS

Kennewick police officers were conducting surveillance on the house of David Webber, who was suspected of involvement in local narcotics sales. As part of this surveillance, police were aware that Mr. Webber was the registered owner of a blue car parked at the residence.

On December 7, 2005, Officer Stan Howard noticed this car idling in front of a trailer park. The officers drove away, but Officer Howard subsequently ran a check on the vehicle and discovered that Mr. Webber had an outstanding warrant. Officer Howard did not have a physical description of Mr. Webber.

The officers decided to return to look for the vehicle, based on Mr. Webber's arrest warrant. They saw the car at a nearby gas station. Kenneth Crary exited the gas station and got in the driver's side of the car. Because he did not have a physical description of Mr. Webber, Officer Howard assumed that Mr. Crary was the registered owner of the car.

According to Mr. Crary, Mr. Webber loaned Mr. Crary the car to run errands. While driving Mr. Webber's car, Mr. Crary stopped at a convenience store. When he returned to the car, two police cars pulled up and blocked the car from leaving.

Police addressed Mr. Crary as "Mr. Webber," and asked Mr. Crary to step out of the car because of the arrest warrant. Report of Proceedings (RP) (Feb. 16, 2006) at 33. According to police, Mr. Crary responded when the police referred to him as "Mr. Webber." And Mr. Crary did not initially offer to correct their assumption that he was Mr. Webber.

Police told Mr. Crary the arrest warrant was for a DUI (driving under the influence). Mr. Crary stated that he never had a DUI. Officer Howard responded, ?'Mr. Webber, I just ran your name and you came back with a warrant.'" RP (Feb. 16, 2006) at 33. According to police, it was only at this point during the stop that Mr. Crary informed them that he was not Mr. Webber. Officer Howard testified that Mr. Crary would not have been free to leave at this point.

Police asked Mr. Crary for his name and date of birth. He provided this information. In order to prove that he was not Mr. Webber, Mr. Crary also offered his driver's license to the officers.

Law enforcement ran a check on this information and discovered that Mr. Crary also had an outstanding warrant. Mr. Crary was arrested, and police searched him and Mr. Webber's car incident to arrest. During the search, police found a pipe that contained residue of methamphetamine and a packet of methamphetamine.

At the suppression hearing, Mr. Crary asserted that Officer Howard knew Mr. Crary and had identified Mr. Crary by name in the past. He also asserted that the officers did not refer to him as "Mr. Webber" when they stopped the car. According to Mr. Crary, it was not until the officers informed him that he had an outstanding arrest warrant that any individual mentioned Mr. Webber's name. At that point, Mr. Crary clarified to the officers that he was not Mr. Webber. Mr. Crary stated that he did not feel free to terminate this encounter with the police.

In its findings of fact, the trial court concluded that law enforcement called Mr. Crary "Mr. Webber" several times before mentioning the arrest warrant, and that Mr. Crary responded to police when they referred to him as "Mr. Webber." Clerk's Papers at 5-6.

The trial court concluded that the police had the right to ask for identification and to check for outstanding warrants, based on the information provided by Mr. Crary. The court also concluded that the police had the right to arrest and search Mr. Crary and the car when they learned that Mr. Crary had an outstanding arrest warrant. The trial court denied Mr. Crary's motion to suppress the evidence obtained during the search of the car.

Mr. Crary waived his right to a jury trial and proceeded to a bench trial. The trial court found Mr. Crary guilty of unlawful possession of methamphetamine and sentenced him to 48 months' confinement. The standard range sentence for Mr. Crary's offense was 12 to 24 months' confinement. But the trial court found that, in light of Mr. Crary's 23 unscored misdemeanor and gross misdemeanor convictions, a standard range sentence was clearly too lenient. The trial court imposed an exceptional sentence that was double the high end of the standard range for Mr. Crary's offense.

ANALYSIS

Motion to Suppress

This court applies a two-step approach on review of the trial court's denial of a motion to suppress. The trial court's findings of fact are reviewed under the substantial evidence standard. State v. Levy, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006). This court reviews the trial court's conclusions of law de novo. Id.

The Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution both protect an individual's right to privacy from governmental trespass. See, e.g., State v. Rankin, 151 Wn.2d 689, 694-95, 92 P.3d 202 (2004). Warrantless searches and seizures are considered per se unreasonable unless they fall within one of the few and narrow exceptions to the warrant requirement. Id. at 695. "[A]ll investigatory detentions constitute a seizure." Id.

It is valid for police to stop a vehicle that is registered to a person whose driver's license has been suspended. State v. Phillips, 126 Wn. App. 584, 587, 109 P.3d 470 (2005), review denied, 156 Wn.2d 1012 (2006). We hold that an official report of an outstanding arrest warrant for the vehicle's registered owner would support an articulable suspicion of criminal activity sufficient to justify an investigatory stop.

"Checking for outstanding warrants during a valid criminal investigatory stop is a reasonable routine police practice, and warrant checks are permissible as long as the duration of the check does not unreasonably extend the initially valid contact." State v. Chelly, 94 Wn. App. 254, 261, 970 P.2d 376 (1999). A stop may not be valid where police are clearly aware that the driver is not the registered owner of the vehicle, and police only have an articulable suspicion of criminal activity as to the vehicle's owner. See State v. Penfield, 106 Wn. App. 157, 162-63, 22 P.3d 293 (2001).

But, where "the warrant is constitutionally valid, the seizure of an individual other than the one against whom the warrant is outstanding is valid if the arresting officer (1) acts in good faith, and (2) has reasonable, articulable grounds to believe that the suspect is the intended arrestee." State v. Smith, 102 Wn.2d 449, 453-54, 688 P.2d 146 (1984).

Here, law enforcement had a reasonable, articulable, good faith basis to believe that Mr. Crary was Mr. Webber. The car that Mr. Crary was driving was owned by Mr. Webber. Police had seen it frequently in front of the residence where Mr. Webber lived. Police lacked a physical description that would indicate that Mr. Crary was not Mr. Webber. And Mr. Crary answered repeatedly to police when they addressed him as "Mr. Webber." It was only when police indicated that Mr. Webber had an arrest warrant that Mr. Crary revealed his actual identity.

Although Mr. Crary subsequently denied being Mr. Webber, the only way for police to verify this was true was to run a check on the information that Mr. Crary provided. The fact that this check revealed an arrest warrant for Mr. Crary does not invalidate Mr. Crary's detention.

Upon discovering an outstanding warrant for a person's arrest, police have the duty to arrest that individual. Chelly, 94 Wn. App. at 262. A valid arrest allows an officer to search incident to that arrest. State v. Potter, 156 Wn.2d 835, 840, 132 P.3d 1089 (2006).

Here, police ran a check on the identifying information provided by Mr. Crary, which revealed an outstanding warrant for Mr. Crary's arrest. The subsequent arrest of Mr. Crary was therefore lawful, as was the resulting search. The trial court did not err by denying Mr. Crary's motion to suppress the evidence obtained as a result of this search.

Exceptional Sentence

Mr. Crary challenges the imposition of an exceptional sentence. This court reviews constitutional challenges and issues of statutory interpretation de novo. See State v. Cubias, 155 Wn.2d 549, 552, 120 P.3d 929 (2005); State v. Williams, 158 Wn.2d 904, 908, 148 P.3d 993 (2006).

The State contends that Mr. Crary waived this issue both by agreeing to a bench trial and by failing to challenge the trial court's findings in support of an exceptional sentence at trial. We disagree.

There is a distinction between a waiver of the right to a jury trial on the underlying charges and the waiver of the right to a jury determination of facts that are purely for sentencing purposes. See, e.g., State v. Giles, 132 Wn. App. 738, 739, 132 P.3d 1151 (2006), review denied, 160 Wn.2d 1006 (2007). Merely proceeding to a bench trial did not constitute a waiver of Mr. Crary's rights under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) because Mr. Crary did not specifically waive the right to jury fact-finding at sentencing.

In addition, the failure to raise this issue at trial does not constitute a waiver. An assertion of the violation of the Sixth Amendment right to a jury trial is a manifest error of constitutional magnitude that may be raised for the first time on appeal. See RAP 2.5(a)(3); State v. Hochhalter, 131 Wn. App. 506, 522, 128 P.3d 104 (2006).

The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to a trial by an impartial jury. The constitutional right to a jury trial includes the right to have a jury determine whether the factors permitting an exceptional sentence have been proved beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); Blakely, 542 U.S. at 301. But facts related to a prior conviction are an exception to this rule. Apprendi, 530 U.S. at 476; Blakely, 542 U.S. at 301. The question for this court is whether the trial court's determination that Mr. Crary's sentence was clearly too lenient violated Mr. Crary's Sixth Amendment right to a jury trial.

The determination of whether a criminal defendant's sentence is clearly too lenient involves factual findings and, therefore, the "too lenient" conclusion is one that must be made by a jury. See State v. Suleiman, 158 Wn.2d 280, 290, 143 P.3d 795 (2006). This court has recently held that the " Blakely fix" statute does not alter this conclusion or otherwise provide a constitutional basis for the trial court to make the finding that a sentence is clearly too lenient. See State v. Saltz, 137 Wn. App. 576, 154 P.3d 282 (2007).

The trial court erred by determining that a standard range sentence for Mr. Crary's offense would be clearly too lenient.

The State also contends that the decision in State v. Clarke authorized a trial court to enter an exceptional sentence based on the finding that the standard range sentence is clearly too lenient. See State v. Clarke, 156 Wn.2d 880, 134 P.3d 188 (2006). Contrary to the State's assertion, the holding in Clarke was based on the determination that the sentence at issue was an indeterminate sentence to which Blakely did not apply. Id. at 892-93. As such, the Clarke decision has no relevance to this court's disposition of this issue.

But a Blakely error is subject to a constitutional harmless error analysis. See Washington v. Recuenco, ___ U.S. ___, 126 S. Ct. 2546, 2551-52, 165 L. Ed. 2d 466 (2006). A constitutional error is harmless if this court is convinced beyond a reasonable doubt that the same result would have occurred at sentencing absent the error. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985). Such errors are presumed prejudicial and the State bears the burden of establishing that the error was harmless. Id.

We are not convinced beyond a reasonable doubt that the same result would have occurred at sentencing absent the error. Therefore, we vacate the exceptional sentence and remand to the trial court.

STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

Mr. Crary presents this court with a statement of two additional grounds for review. He alleges that the trial court erred by permitting this case to proceed to trial despite the fact that the State failed to enter written findings of fact following the suppression hearing. Mr. Crary also contends that the trial court failed to consider his pro se motion for discovery.

Findings of Fact

Mr. Crary maintains that the State was required to enter findings of fact at the conclusion of the suppression hearing, and that the State's failure to do so in this case was error. But Mr. Crary appears to misapprehend the law requiring the entry of findings of fact on a suppression hearing. CrR 3.6(b) requires the trial court, not the State, to enter written findings of fact and conclusions of law at the conclusion of a suppression hearing. The trial court complied with this duty. Mr. Crary's assertion of error is without merit.

Motion for Discovery

Mr. Crary presented the trial court with a motion for discovery of all material, including exculpatory evidence, in the possession of the State. He alleges that the trial court erred by failing to consider this motion.

But Mr. Crary has not provided this court with any indication of the trial court's response. His argument relies on an insufficient record and on matters that are outside of the record. And an insufficient record on appeal precludes review of the alleged error. Bulzomi v. Dep't of Labor § Indus., 72 Wn. App. 522, 525, 864 P.2d 996 (1994).

We affirm the conviction but remand for resentencing.

A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

STEPHENS, J., BROWN, J., concur.


Summaries of

State v. Crary

The Court of Appeals of Washington, Division Three
Aug 21, 2007
140 Wn. App. 1016 (Wash. Ct. App. 2007)
Case details for

State v. Crary

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. KENNETH ALLEN CRARY, Appellant

Court:The Court of Appeals of Washington, Division Three

Date published: Aug 21, 2007

Citations

140 Wn. App. 1016 (Wash. Ct. App. 2007)
140 Wash. App. 1016